Wrath of the angry left

How hard will Senate Republicans fight the Kagan Supreme Court nomination? Will legal lefties vent their anger at the White House for not picking a full-throated liberal progressives to battle Scalia and Alito?

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What’s your impression of Elena Kagan and President Obama’s decision to choose her for the Supreme Court?

I think the president finds himself in a conundrum. I think the originalists in the city, those who believe in the Constitution as it was framed, will use the Obama standard – the standard he established with Roberts and Alito … who were qualified but he was in favor of filibustering them because they weren’t the sort of justices he would like to see on the bench. Even those who believe that she is qualified by traditional standards will employ the Obama standard, which will, I think, appropriately open her up to a more comprehensive vetting.

What do you make of her lack of judicial experience?

Given that she has no experience on the bench, and she is essentially a blank slate from a bench experience standpoint, many senators will move to the Obama standard and use this as their reasoning.

And she is exactly the sort of justice that the president needs on the bench to carry out his agenda. As opposed to an originalist, she is a believer in the 21st century Constitution. She would vote in a manner and offer opinions in a manner … that would be more suited to the advancement of the Obama agenda.

If she is politically aligned with President Obama, why does it matter since she’ll be replacing a liberal justice?

She’s 50 years old, she’s in fine health and she could be on the court for another 30, 35 years or so … and I think that warrants using the Obama standard and the sort of scrutiny that I would anticipate the Senate will provide.

Several Republican senators voted for her confirmation as solicitor general. How will those votes play out?

I think senators on both sides of the aisle are generally bright people, and they understand the difference between voting affirmatively for a solicitor general and one of the nine justices of the Supreme Court. I think that they realize this is a lifetime appointment and could have a tremendous effect on the role of government in our lives and actually take off some of the limits that the Constitution in its original form has placed on executive power.

What about her banning campus military recruiters on campus – do you think conservatives will make that an issue during her confirmation hearings?

I think that will be one of several issues. I tend to believe that her position on Second Amendment freedoms and her position on the interpretation of the Commerce Clause as it relates to Obamacare will probably dominate the hearings. But I am sure her position on “don’t ask, don’t tell” will be a particular interest to some senators and a nice cross-section of the voting public.

Ultimately, will she be confirmed?

If I’m looking at the numbers, the chances are better for her confirmation then they are for her confirmation being blocked. But I don’t know … it’s going to be interesting to see how much of their political skin [senators] will leave on the ground in the process.

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